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Mainstream, VOL LIV No 32 New Delhi July 30, 2016

Debate on Uniform Civil Code

Tuesday 2 August 2016, by Ambrose Pinto

When the Prime Minister of the country makes a request to the Law Commission to examine the case of uniform civil code, like many others I wonder whether there are ulterior motives given his commitment to a definite ideology. Modi is a representation and he represents a definite school of thought. When he decides to request the Law Commission to provide him with inputs on the uniform civil code, he may have reasons or a hidden agenda. In the past there have been people with a liberal outlook who have made a plea for uniform civil code so that the laws of the country are premised on universal principles of human rights irrespective of caste, creed and gender. There were concerned people, concerned about justice to women, irrespective of religion. Their position was deeply respected. In the Indian society various kinds of discrimination exists. While caste discrimination is rampant in the country, gender discrimination is no less. Minorities too are targeted and there are discriminatory practices even among them. Their concern was to provide justice to all beyond religion. Secular in outlook, their desire was to provide equal dignity and honour to every citizen. There was no questioning of their motives.

The other group that has been consistently demanding a uniform civil code comprises the proponents of Hindutva to which the Prime Minister belongs. For the most part, their attack has been on the Muslim personal law. They have questioned the right of Muslim men to marry four women and the right to divorce by uttering the word “talaq” three times. The country has been told that if these practices are not stopped, the Muslims will one day take over the country. The uniform civil code, for the Hindutva brigade, is to attack the Muslim community for narrow political gains by making use of stereotypes. Truth does not matter when the group desires to benefit. The fact is that given the sex ratio of 922 women for 1000 men, Muslims cannot afford to get even one wife. And yet the propaganda against the community persists.

Uniform Laws for All

When we talk about a uniform civil code, we are talking about uniform laws for all. In fact most laws in the country are uniform. Laws pertaining to crimes and punishment, trade and commerce, taxation and education, laws relating to evidence are uniform. There are laws all citizens are expected to follow that pertain to governance. The Indian Constitution, however, has permitted family affairs like marriage, divorce, inheritance, guardianship and adoption to be governed by customs or rules applicable to the persons and their community. It is a very small area. Why was it done? It was done because it was thought to be wise not to disturb the social and religious diversity of communities. After all, the framers of the Constitution did not desire an India of unity in uniformity but an India of unity in diversity.

This diversity, however, is not merely for the minorities. Even in the Hindu Marriage Act there is exemption of certain clauses where custom or usage governing each of the parties is permitted. If one is married under the Hindu Marriage Act, the law applicable for divorce would be Hindu law. Similarly, the legality of marriages involving cousins prevalent in certain groups of Hindus belonging to South India is protected by this exemption. Courts have recognised certain tribal customs as ‘other laws’ thereby exempting the members of certain tribes from the applicability of the Hindu Marriage Act. That means, even Hindu Marriage Act is not uniform for all Hindus covered by the Act. With the tribal self-rule law, tribals are exempted from local self-government laws and permitted to have recourse to their customary laws. The tribals of the North-East own property collectively and there is no provision for private property there. In a plural country, laws have to be plural. Why then this obsession for uniform civil code?

Freedom of Conscience and Uniform Civil Code

The Indian Parliament did enact a secular law for marriages back in 1954. And yet the numbers of marriages that take place under this system are few. Why don’t people adopt this uniform law? The answer is simple. Communities have their own customs and traditions that they do not want to give up. Marriage is a community celebration and as long as communities are different, they will have different customs and traditions. It is not easy therefore to adopt a uniform civil code since communities are all guided by their religious, social and customary laws. If a set of rules that violate the customary and religious laws are forced on the commu-nities by the state, that would amount to the denial of the basic right of freedom of conscience. Democracies have to learn to respect both individual and community rights of people. That is why there is a need to broaden the debate of uniform civil code beyond four wives and three talaqs to caste discrimination, honour killings, khap panchayat and devadasi system still prevalent in spite of their abolition. These are major concerns for the country than uniform civil code. We are a multi-cultural society and the country needs to be tolerant about all communities. Sadly instead of reforming the majority community on child marriages, temple prostitution, human trafficking, bonded labour, dowry and other discriminatory practices making use of the uniform civil code as a tool for minority bashing is not right.

Of course, Ravi Shankar Prasad, the Union Law Minister, has said the decision of the government to refer the issue of implementation of a uniform civil code in the country to the Law Commission should not be linked to the Assembly elections in Uttar Pradesh due next year. He has said that Article 44 of the Constitution talks about it, the Supreme Court on various occasions has made observations on it and it is in his party’s election manifesto and there is a need for a “wider consultation” on the issue before arriving at a decision as was suggested by the Supreme Court. The Court had called for a wider debate before taking a decision on the constitutional validity of ‘triple talaq’, which many complain is abused by Muslim men to arbitrarily divorce their wives. Ravi Shankar is a BJP politician and every word in his statement is politics. There are a number of other issues that need urgent attention and the Supreme Court has called for action. More than once the courts have spoken about maintaining the secular character of the country. Yet the party has not called for a wider debate on the issue or discussions on how to strengthen the secular fabric of the nation. The country is experiencing various kinds of violence and it needs immediate response. However that is not a priority for the party in power.

Given the problems of discrimination, corruption, communalisation and increasing poverty in the vulnerable sections, at this point of politics we may not really require a discussion on a uniform civil code. There are no major problems with personal laws since in practice religious communities have come to bestow greater respect to women. Much of the propa-ganda is for political purposes. Majoritarian communalism that is at the root in highlighting this issue is not the way of addressing it. If the law is imposed from above, it is an attack on democracy. Communities may not be fully open to accept secular laws especially because of the coercion from the BJP and its affiliates. In the context it is not right to force communities to obey laws that they do not think are important at this juncture. The country has thousands of other problems of food, clothing and shelter, employment and education. They should be concerns that the government has to address. As for personal laws, let us wait for communities to bring about their own reforms. The triple talaq is not as much a problem as the large number of divorces and separations in every community. Given the skewed sex-ratio among the Muslims with fewer women than men, it is not possible to misuse talaq as is made out. There could be a small section that abuses a law in every community. Besides, people do change. One example is the Muslim law allowing a Muslim man to marry four wives. The official statistics of the Indian state says that there are more Hindu men with more than one wife than Muslims. There is no meaning therefore in attacking the Muslim community on this score.

What we need is deep respect to all traditions. Once respect is offered, the dialogue is possible. It is this respect for the minorities that the party in power lacks. This is not to oppose uniform civil law. Can we make people to adopt it voluntarily? There are already people who are opting out from their personal laws. What is important is to encourage such individuals to adopt secular laws so that we contribute to a secular India rather than use it as a political tool.

Dr Ambrose Pinto SJ is the Principal of St. Aloysius Degree College, Bangalore.